delivered the opinion of the court.
This writ of error is sued out to review a judgment in a personal injury case because a petition to remove the case to the Circuit Court of the United States is said to have been erroneously denied.
The plaintiff, Albert M. Dowell, was a laborer in the employ of the railroad company, his work being to remove cinders and other debris from the tracks and yards of the company in the town of Liberal, Kansas, He was a resident and citizen of that State. The railroad company was a corporation of the States of Illinois and Iowa’, but not of Kansas. The plaintiff while engaged in his proper work was run down by an engine, upon which one Ed. Johnson was the engineer in control, sustaining serious and permanent injuries.
To recover damages for his hurt, Dowell sued the railroad company and Johnson as jointly and severally liable. Johnson was alleged to be, and was in fact, a citizen of the State of Kansas. The' railroad company in due time hied its petition and bond, to remove the action of the plaintiff against it to the Circuit Court of the United States, as presenting a separable controversy between the plaintiff and the corporation, which could be tried out and determined without the presence of its co-defendant, Johnson.
Shortly stated the plaintiff’s grounds for recovery, as averred in his petition, were these:
a. That the engine which ran over him was old, worn and defective. ' ‘ That it leaked steam into its cylinder and would not stand when left alone, but would move without the intervention of human or outside agency. Thát the appliances and machinery of said engine for starting and stopping same were so defective that the same would start and stop without reference to said machinery, and would not respond to the operation of said machinery.” That it was without sufficient or safe driving wheel brakes, all of which was averred to be well known to the defendants and not known to the plaintiff.
b. That the defendant Johnson in charge and control of the said engine at the time of its collision with plaintiff, “was incompetent, unskilled and unfit to discharge the duties as an engineer at the time he was employed, ... as- said railway company well knew, and that he has been unskilled, unfit and incompetent as the railway company well knew, but all of which this plaintiff was at all times ignorant.”
c. “That the injury to plaintiff was the direct and proximate result of the unfitness and incompetency of
The claim of a right to have the cause removed to the Circuit Court of the United States was that the requisite diversity of citizenship existed as between the plaintiff and the petitioning railroad company, and that there existed as between them a separable controversy.
But if the plaintiff alleges that the concurrent negligence 'of the railroad company and its employé, Johnson, was the cause of his injury, he has a right to join them in one action. If he elects to do so, it supplies no ground for removal because he might have sued them separately. Louisville & N. R. R. Co. v. Wangelin, 132 U. S. 599, 601; Powers v. C. & O. Railroad, 169 U. S. 92; Alabama & G. S. Railway v. Thompson, 200 U. S. 206.
But it is said that some of the matters charged against Johnson consisted in acts of non-feasance, and that an employer is not liable to a third person for conduct of that character.
Whether liability to a third person against a master may result from the servant’s neglect of some duty owing to the employer alone, may be debatable. But we need not consider that question, since the plaintiff’s declaration averred positive acts of negligence on the part of Johnson toward the plaintiff, namely, that while engaged in the company’s service in the movement of the engine, he did not exercise that degree of care and skill which he was bound to exercise toward another servant engaged upon the tracks in the company’s work. This was an act of misfeasance, for which he would be primarily liable, notwithstanding his contract relation to the employer and the liability of the latter for his negligent act under the .Kansas statute abolishing the common law rule in respect of fellow-servants.
The state court held that the allegations of the petition stated a case of concurring negligence of master and servant for which they might be jointly sued. That court, also, aside from any positive acts of negligence, such as the retention of an incompetent servant in the control and management of an unmanageable engine, must be regarded as necessarily holding that under the law and practico of the State, it was admissible to jointly sue the company with the servant for whose negligent act it was
Whether there was a joint liability or not was a question to be determined upon the averments of the plaintiff’s statement of his cause of action, and is a question for the state court to decide. Railroad v. Thompson, supra; Illinois Central Railroad v. Sheegog, 215 U. S. 308.
That the liability of the railroad company was statutory in so far as the common law fellow-servant rule had been abolished by statute, and the liability of Johnson dependent upon common law, was held by the Kansas Court not to preclude a joinder. “It is enough,” said the court below, “if the.concurrent acts of negligence of each contributed to the injury inflicted upon the plaintiff.” Southern Railway v. Miller, supra.
But the petition for removal averred that the sole reason in joining Johnson was for the fraudulent purpose of defeating the right of the railroad company to remove the action. It is further insisted that this averment presented a question of fact which could be tried only in the Circuit Court of the United States.
Allegations of fact, if controverted, arising upon such a petition, are triable, only in the court to which it is sought to be removed. Illinois Central Railroad v. Sheegog, supra. But if the petition was insufficient upon its face, the state court might for that reason deny it. It is well settled that the mere averment that a particular defendant had been joined for the fraudulent purpose of defeating the right of removal which would otherwise exist, is not in law sufficient. If the plaintiff had a right to elect whether he would join two joint tort-feasors, or sue them separately, his motive in joining them is not fraudulent, unless the mere epithet “fraudulent” is backed up by some other charge or statement of fact. Illinois Central Railroad Co. v. Sheegog, supra.
Neither did the allegation that the defendant Johnson
There was no error in denying the petition to remove.
Judgment affirmed.